New York Law Review

Tag: CPLR 3216

  • Cadichon v. Facelle, 17 N.Y.3d 226 (2011): Enforcing Procedural Rules for Dismissal Based on Neglect to Prosecute

    Cadichon v. Facelle, 17 N.Y.3d 226 (2011)

    A case dismissal for neglect to prosecute requires judicial involvement and a formal order, even when a stipulation sets a deadline for filing a note of issue and includes a 90-day demand, because the demand only serves as a basis for a court’s motion to dismiss, not an automatic dismissal.

    Summary

    Plaintiffs brought a medical malpractice action, and a stipulation was executed directing them to file a note of issue by a specific date, coupled with a 90-day demand pursuant to CPLR 3216. When plaintiffs failed to meet the deadline, the case was administratively dismissed without a court order. The Court of Appeals held that the dismissal was improper because CPLR 3216 requires judicial involvement and a formal order, even when a 90-day demand is served. The 90-day demand only provides a basis for the court to consider a dismissal; it does not authorize an automatic dismissal by the clerk’s office. The court emphasized the importance of judicial oversight in such dismissals to ensure fairness and due process.

    Facts

    Plaintiffs commenced a medical malpractice action against multiple defendants in May 2003. After consolidation with another related action in May 2006, a compliance conference order was prepared, setting discovery deadlines. On May 3, 2007, the parties executed a stipulation directing the defendants’ depositions and requiring plaintiffs to file a note of issue by December 27, 2007. A “DEMAND FOR SERVICE AND FILING OF NOTE OF ISSUE” was also served, stating that failure to comply within 90 days “will serve as a basis” for dismissal. Plaintiffs failed to file the note of issue by the deadline.

    Procedural History

    The case was administratively dismissed on December 31, 2007, without notice to the parties or a formal court order. Plaintiffs moved to vacate the dismissal, but Supreme Court denied the motion. The Appellate Division affirmed. The Court of Appeals reversed the Appellate Division’s order and reinstated the complaint.

    Issue(s)

    Whether a case can be properly dismissed for neglect to prosecute under CPLR 3216 when the dismissal is administrative and occurs without a formal court order, even after a 90-day demand to file a note of issue was served.

    Holding

    No, because CPLR 3216 requires judicial involvement and a formal order for dismissal based on neglect to prosecute; the 90-day demand only provides a basis for the court to consider a dismissal, not an automatic dismissal.

    Court’s Reasoning

    The Court of Appeals emphasized that CPLR 3216(a) allows a court to dismiss a case for unreasonable neglect to proceed, but only after a written demand is served pursuant to CPLR 3216(b)(3). The statute requires the demand to state that “default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal.” The Court found that the case was dismissed “ministerially” without any evidence that the trial court made a motion to dismiss the action. The court stated, “That is not what occurred here; there is no evidence in the record that the trial court made a motion to dismiss the action in this case, and it is apparent that the case was dismissed based upon plaintiffs’ failure to comply with the May 3, 2007 stipulation and 90-day demand in doing so.” The court further noted that even though the parties were not diligent in moving the case forward, the dismissal should have been a decision made by the trial court, with notice to the parties, not the Clerk’s Office. The Court referenced the 2008 amendment to CPLR 205(a), which requires the judge to “set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation,” to highlight the necessity of judicial involvement in dismissals for neglect to prosecute. The Court reiterated that “litigation cannot be conducted efficiently if deadlines are not taken seriously…[and] that disregard of deadlines should not and will not be tolerated” (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521 [2005]), but maintained that procedural rules must be followed to ensure due process.

  • Davis v. Good Samaritan Hospital, 99 N.Y.2d 632 (2003): Excuses for Delay and Dismissal for Failure to Prosecute

    Davis v. Good Samaritan Hospital, 99 N.Y.2d 632 (2003)

    A court abuses its discretion by dismissing a complaint for failure to prosecute when the plaintiff demonstrates both a meritorious cause of action and a justifiable excuse for the delay.

    Summary

    This case addresses the circumstances under which a medical malpractice action can be dismissed for failure to prosecute under CPLR 3216. The plaintiff’s original attorney was disbarred, causing significant delays. The Court of Appeals held that the Appellate Division abused its discretion in dismissing the complaint because the plaintiff demonstrated a justifiable excuse for the delay (attorney disbarment) and a meritorious cause of action (supported by a medical expert affidavit). This case highlights the “forgiving” nature of CPLR 3216 regarding litigation delays when a reasonable excuse and meritorious claim exist.

    Facts

    In 1995, the plaintiff initiated a wrongful death action alleging medical malpractice. During discovery, the plaintiff’s attorney faced disciplinary proceedings and was disbarred in June 1998. The attorney’s law firm took over the case, but it remained inactive. The defendants served the plaintiff with a 90-day notice to resume prosecution in April and November 1999. The case was transferred to the plaintiff’s new attorney in January 2000, who promptly notified the parties of the intent to resume prosecution. A certification conference was held in April 2000.

    Procedural History

    The defendants moved to dismiss the complaint after the plaintiff failed to file a note of issue or seek alternative relief within the 90-day period. The Supreme Court denied the motions, finding a meritorious claim and a justifiable excuse for the delay. The Appellate Division reversed, concluding that the plaintiff had not shown a reasonable excuse or proof of a meritorious cause of action, and dismissed the complaint. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the Appellate Division abused its discretion as a matter of law in dismissing the plaintiff’s complaint for failure to prosecute under CPLR 3216, given the plaintiff’s demonstration of a justifiable excuse for the delay and a meritorious cause of action.

    Holding

    Yes, because the plaintiff demonstrated both a meritorious cause of action, supported by a medical expert affidavit, and a justifiable excuse for the delay, stemming from the disbarment of the original attorney and subsequent neglect.

    Court’s Reasoning

    The Court of Appeals emphasized that CPLR 3216 is “extremely forgiving of litigation delay.” The court referenced Baczkowski v Collins Constr. Co., 89 NY2d 499, 503 (1997). The court found the disbarment of the original attorney and the subsequent neglect by the law firm constituted a justifiable excuse. The court quoted Carte v Segall, 134 AD2d 397, 398 (2d Dept 1987) stating that such delay “was not willful or with intent to abandon the action, but rather was the result of neglect on the part of the [plaintiffs] previous attorneys.” Furthermore, the court noted that after the case was transferred to the new attorney, pretrial matters proceeded with the knowledge and participation of the defense counsel. The court also found the plaintiff demonstrated a meritorious claim by providing a medical expert affidavit, citing Mosberg v Elahi, 80 NY2d 941, 942 (1992). The affidavit detailed the procedures that should have been followed and opined “that the care rendered to [the decedent] deviated from accepted medical practice, was medically negligent and was the cause of [his] passing.” The Court concluded that the Appellate Division abused its discretion in dismissing the complaint. The Court explicitly stated, “Plaintiff demonstrated both a meritorious cause of action and a justifiable excuse for the delay, and as a result, the Appellate Division abused its discretion by dismissing the complaint.”

  • Baczkowski v. Collins Construction Co., 89 N.Y.2d 499 (1997): CPLR 3216 Demand Requirement for Dismissal

    Baczkowski v. Collins Construction Co., 89 N.Y.2d 499 (1997)

    A court cannot dismiss an action for general delay if the plaintiff has not been served with a 90-day demand to serve and file a note of issue as required by CPLR 3216(b).

    Summary

    This case addresses whether a court can dismiss a complaint for general delay when the defendant has failed to serve the plaintiff with a 90-day demand to file and serve a note of issue as required by CPLR 3216. The Court of Appeals held that absent such a demand, dismissal for general delay is improper. The court emphasized the legislative history and intent behind CPLR 3216, particularly the 1967 reenactment, which aimed to prevent dismissals for failure to prosecute without first providing the plaintiff with a chance to file a note of issue. The ruling underscores the importance of strict adherence to the procedural requirements of CPLR 3216 before a case can be dismissed for delay.

    Facts

    The plaintiff commenced an action for attorney’s fees and breach of contract. The Supreme Court denied the plaintiff’s motion for summary judgment and directed the plaintiff to file and serve a note of issue. The plaintiff served, but did not file, a note of issue in October 1989. A second note of issue was served and filed in August 1992. The defendants moved to strike the note of issue and dismiss the complaint, arguing the plaintiff failed to comply with the 1989 order and abandoned the lawsuit by failing to take action for three years. The Supreme Court denied the motion, noting the defendants’ failure to comply with CPLR 3216.

    Procedural History

    The Supreme Court denied the defendant’s motion to strike the note of issue and dismiss the complaint. The Appellate Division modified the Supreme Court’s order, granting the motion to strike the note of issue and dismiss the complaint, characterizing the plaintiff’s delay as general delay. The Court of Appeals reversed the Appellate Division’s order, holding that the failure to serve a 90-day demand as required by CPLR 3216(b) barred dismissal of the complaint.

    Issue(s)

    Whether a court can dismiss an action for general delay when the defendant has not served the plaintiff with a 90-day demand to serve and file a note of issue as required by CPLR 3216(b).

    Holding

    No, because courts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b).

    Court’s Reasoning

    The Court of Appeals emphasized the plain language of CPLR 3216, which requires a written demand to serve and file a note of issue within 90 days before a court can dismiss an action for neglect to proceed. The Court reviewed the legislative history of CPLR 3216, noting the amendments intended to address concerns about cases being dismissed for failure to prosecute without adequate notice. The Court cited Cohn v. Borchard Affiliations, 25 N.Y.2d 237, 246, stating, “As it now reads, the statute [CPLR 3216] permits of no doubt as to its meaning: no motion to dismiss for failure to prosecute, brought prior to the filing of a note of issue, may be made unless the defendant has first served the plaintiff with a demand that he file a note of issue. In other words, under the 1967 change, any plaintiff who has neglected to place his case on the calendar for any reason automatically gets a second chance to do so before his case may be dismissed.” The court concluded that without the 90-day demand, dismissal for general delay is improper. The plaintiff’s self-initiated action in filing and serving the note of issue insulated plaintiff from dismissal for any delay prior to the filing.

  • Amodeo v. Radler, 59 N.Y.2d 1001 (1983): Sufficiency of Verified Complaint as Affidavit of Merit

    Amodeo v. Radler, 59 N.Y.2d 1001 (1983)

    A complaint verified by the plaintiff based on personal knowledge and detailing the defendant’s acts of negligence can serve as a sufficient affidavit of merit to defeat a motion to dismiss for failure to prosecute.

    Summary

    In a medical malpractice and negligence action, the New York Court of Appeals considered whether the plaintiff’s verified complaint could serve as a sufficient affidavit of merit to defeat a motion to dismiss for failure to prosecute. The Court held that the verified complaint, detailing the specific acts of negligence by defendant Paratore, was indeed a sufficient affidavit of merit. The Court reversed the Appellate Division’s dismissal of the complaint against Paratore and remitted the case for the Appellate Division to consider the matter in the exercise of its discretion. However, the Court affirmed the dismissal against the medical malpractice defendants due to the plaintiff’s failure to file a proper affidavit of merits.

    Facts

    The plaintiff, Amodeo, brought a lawsuit against Vassar Brothers Hospital, Dr. Isidro Ferrando, and Louis Paratore, alleging medical malpractice and negligence. The specific facts underlying the negligence claim against Paratore are not extensively detailed in this decision, but the complaint detailed Paratore’s acts of negligence. The plaintiff verified the complaint based on personal knowledge.

    Procedural History

    The defendants moved to dismiss the case for failure to prosecute under CPLR 3216, arguing that the plaintiff failed to serve and file a note of issue. Special Term denied the motion. The Appellate Division reversed, dismissing the complaint against all defendants. The Appellate Division stated that it was an abuse of discretion to deny the motion to dismiss. The plaintiff appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the plaintiff’s failure to file a separate affidavit of merits requires dismissal of the complaint against the medical malpractice defendants.
    2. Whether a complaint verified by the plaintiff on the basis of personal knowledge can constitute a sufficient affidavit of merit to defeat a motion to dismiss for failure to prosecute, specifically regarding the negligence claim against defendant Paratore.

    Holding

    1. Yes, because the plaintiff failed to file an affidavit of merits as required in medical malpractice cases, the dismissal against Vassar Brothers Hospital and Dr. Ferrando was affirmed.
    2. Yes, because the verified complaint detailed Paratore’s specific acts of negligence and was based on the plaintiff’s personal knowledge, it served as a sufficient affidavit of merit.

    Court’s Reasoning

    Regarding the medical malpractice defendants, the Court of Appeals cited Amodeo v. Radler, 59 NY2d 1001 and Sortino v. Fisher, 20 AD2d 25, 31-32, emphasizing the requirement for an affidavit of merits in such cases. The absence of this affidavit justified the dismissal. Regarding defendant Paratore, the Court referenced CPLR 105, subd [s] and Bethlehem Steel Corp. v. Solow, 51 NY2d 870, 872, indicating that a verified complaint can substitute for a formal affidavit of merit if it contains sufficient detail and is based on personal knowledge. The Court determined that the Appellate Division erred in holding, as a matter of law, that Special Term abused its discretion. The court noted the inconsistency in the Appellate Division’s decision, stemming from a statement that the reversal was an exercise of discretion versus the order reciting that the decision was on the law. The Court resolved this inconsistency by stating that “it was an abuse of discretion” which is a ruling on the law (citing Barasch v Micucci, 49 NY2d 594, 598). The Court held that because the verified complaint detailed Paratore’s acts of negligence, it was sufficient. The case was remitted to the Appellate Division to consider the matter within its discretion.

  • Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969): Upholding Legislative Authority Over Court Procedure

    Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969)

    The Legislature possesses broad authority to enact statutes regulating practice and procedure in the courts, including limitations on a court’s power to dismiss cases for failure to prosecute.

    Summary

    This case addresses the constitutionality of CPLR 3216, which requires a defendant to serve a 45-day demand on the plaintiff to file a note of issue before moving to dismiss the complaint for failure to prosecute. The Court of Appeals held that CPLR 3216 is constitutional, finding that the Legislature has the power to regulate practice and procedure in the courts. The court reasoned that the power to dismiss for failure to prosecute was initially a legislative creation, not an inherent judicial power, and the statute doesn’t unconstitutionally infringe upon judicial prerogatives.

    Facts

    In Cohn, the plaintiffs sued for personal injuries sustained in 1961, commencing the action in 1964. After the defendant answered and demanded a bill of particulars, no action was taken until 1967, when the defendant moved to dismiss for failure to prosecute. In Blankenship, the plaintiff alleged breach of contract in a suit commenced in 1960. After some initial activity, the plaintiff took no action for over four years, prompting the defendant to move to dismiss for failure to prosecute.

    Procedural History

    In Cohn, the lower court denied the motion to dismiss, citing the defendant’s failure to serve the 45-day demand required by the newly enacted CPLR 3216. The Appellate Division reversed, holding the statute unconstitutional and directing dismissal. In Blankenship, the lower court granted the motion to dismiss, citing the excessive delay, and the Appellate Division affirmed without opinion, following its Cohn decision. Both cases were appealed to the New York Court of Appeals.

    Issue(s)

    Whether CPLR 3216, which requires a defendant to serve a 45-day demand on the plaintiff to file a note of issue before moving to dismiss for failure to prosecute, is an unconstitutional infringement on the court’s inherent power to control its calendar.

    Holding

    No, because the Legislature has broad authority to enact statutes regulating practice and procedure in the courts, including limitations on a court’s power to dismiss cases for failure to prosecute.

    Court’s Reasoning

    The Court of Appeals reasoned that the power to dismiss actions for undue delay was a legislative creation, not an inherent judicial power. The court traced the history of dismissal for failure to prosecute, noting that it originated in colonial legislation. The Court cited Section 30 of Article VI of the New York Constitution, explicitly granting the Legislature broad power to formulate rules of procedure, limited only by the power it had “heretofore exercised.” While acknowledging that some matters are beyond legislative reach due to the nature of governmental structure, the Court found the authority to regulate practice and procedure lies principally with the Legislature.

    The Court distinguished the prior case of Riglander v. Star Co., where a statute mandating trial dates was deemed unconstitutional. Unlike the statute in Riglander, which interfered with the court’s discretion over its calendar, CPLR 3216 only provides a procedural opportunity to correct a default. As the Court noted, “The courts are not the puppets of the Legislature…And while the Legislature has the power to alter and regulate the proceedings in law and equity, it can only exercise such power in that respect as it has heretofore exercised; and it has never before attempted to deprive the courts of that judicial discretion which they have been always accustomed to exercise.”

    The Court emphasized the practical considerations, cautioning that invalidating CPLR 3216 would jeopardize numerous other provisions of the CPLR and undermine the concept of a statutory code of judicial procedure. The Court concluded by stating that it must accord to the Legislature a considerable degree of controlling effect over the powers of the court and that a section’s inconsistency with their own vision of efficient judicial administration is insufficient basis for deeming it unconstitutional.

  • Noto v. Noto, 299 N.Y.S.2d 1 (1969): Res Judicata and Dismissal ‘on the Merits’ for Failure to Prosecute

    Noto v. Noto, 299 N.Y.S.2d 1 (1969)

    A dismissal “on the merits” for failure to prosecute an action generally bars a subsequent action or counterclaim on the same claim, but does not preclude asserting the same facts defensively in an action brought against the party involving the same subject matter, particularly when equitable title to real property is at stake.

    Summary

    This case addresses the res judicata effect of a prior dismissal “on the merits” for failure to prosecute, specifically concerning a real property dispute. The Court of Appeals held that while such a dismissal typically bars subsequent claims, it does not prevent a party from asserting the same facts defensively in a later action involving the same subject matter. Given the unique circumstances of a real property dispute involving potentially divided legal and equitable title, the court allowed the defendant’s counterclaim to stand, enabling a complete resolution of the property rights.

    Facts

    Noto initially filed an action regarding real property rights, which was dismissed after he failed to appear at trial. Noto’s motion to open his default was granted, but he again failed to appear. The trial court then dismissed the action “on the merits”. Subsequently, the other party (plaintiffs in the present case) commenced an action, and Noto responded with an answer that included an affirmative defense and a counterclaim asserting the same facts as in his previously dismissed complaint.

    Procedural History

    The plaintiffs moved for summary judgment, arguing that the prior dismissal “on the merits” was res judicata. The Special Term agreed, dismissing Noto’s counterclaim and granting summary judgment to the plaintiffs. Noto appealed, arguing the “on the merits” dismissal was a nullity. The Court of Appeals reversed, allowing Noto’s counterclaim to stand.

    Issue(s)

    1. Whether a dismissal “on the merits” for failure to prosecute under CPLR 3216 bars the dismissed party from asserting the same claim as a counterclaim in a subsequent action brought by the opposing party.
    2. Whether the general rule barring such counterclaims applies when the underlying dispute concerns equitable title to real property, potentially leading to a division of legal and equitable title.

    Holding

    1. Generally, yes, because a dismissal “on the merits” typically precludes relitigation of the same claim. However, the specific facts matter.
    2. No, because in this unique circumstance, the defendant can maintain his counterclaim because it prevents an unsatisfactory and unsettled state with legal title in one party and equitable title in another.

    Court’s Reasoning

    The court acknowledged that CPLR 3216 allows a court to dismiss a case for failure to prosecute “on terms,” which can include a dismissal “on the merits.” This was intended to prevent litigants from circumventing voluntary dismissal rules by abandoning claims. Ordinarily, a plaintiff whose action has been dismissed “on the merits” for failure to prosecute should be barred from asserting a counterclaim on the same claim.

    However, the court emphasized that this case was sui generis because it involved a dispute over title to real property. Striking Noto’s counterclaim but allowing his allegations to remain as a defense could result in legal title residing with one party while equitable title resided with the other, creating an “unsatisfactory and unsettled state.” The court reasoned that, under these “peculiar circumstances,” Noto’s counterclaim could stand, and he would be entitled to relief on the counterclaim if he established his claim, even though he could not have obtained such relief through a separate action. This approach aligns with the philosophy underlying CPLR 203(c), which allows a defense or counterclaim barred by the Statute of Limitations to be asserted as a setoff if it arose from the same transaction.

    The court’s decision reflects a balancing of the need to prevent repetitive litigation and the importance of resolving real property disputes completely and fairly. It underscores that while a dismissal “on the merits” generally has preclusive effect, courts retain discretion to allow a counterclaim in specific circumstances where doing so is necessary to achieve a just outcome, particularly when dealing with equitable claims to real property. The court noted the importance of preventing litigants from “repeatedly bringing his claim into court, thereby harassing the other parties involved and clogging the court’s calendar.”

  • Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969): Discretion to Dismiss for General Delay Before Note of Issue Filing

    Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969)

    A court retains the discretion to dismiss an action for general delay in prosecution, even before a note of issue is filed, without requiring the defendant to serve a 45-day demand, as long as the motion isn’t solely based on the failure to file a note of issue.

    Summary

    The New York Court of Appeals addressed whether a court could dismiss a case for general delay before a note of issue was filed, without the defendant first issuing a 45-day demand to the plaintiff to file one. The court held that CPLR 3216’s 45-day demand requirement only applies when the motion to dismiss is solely based on the failure to file a note of issue. The court reasoned that the statute does not restrict the inherent power of the courts to dismiss actions for overall neglect. The court affirmed the dismissal, emphasizing the importance of diligent prosecution of actions.

    Facts

    The plaintiff alleged injuries in October 1960 and filed suit against the defendant in June 1962. The defendant requested a physical examination in March 1963, which the plaintiff failed to attend. No further action was taken by the plaintiff. In February 1965, the defendant moved to dismiss the case based on general delay.

    Procedural History

    The Special Term denied the defendant’s motion to dismiss. The Appellate Division reversed the Special Term’s order and granted the defendant’s motion to dismiss.

    Issue(s)

    Whether a court has the power to dismiss an action for general delay before the filing of a note of issue, if the defendant has not complied with the 45-day demand requirement of CPLR 3216.

    Holding

    No, because CPLR 3216’s 45-day demand requirement only applies when the motion to dismiss is based solely on the failure to file a note of issue, and does not restrict the court’s power to dismiss for general delay.

    Court’s Reasoning

    The court reasoned that the second paragraph of CPLR 3216, which outlines the 45-day demand requirement, only applies when the motion to dismiss is based on the failure of the plaintiff to serve and file a note of issue. The court emphasized that in this case, the defendant’s motion was based on general delay, not solely on the failure to file a note of issue. The court also noted the Governor’s veto of a proposed amendment to CPLR 3216, which would have imposed an unnecessary limitation on the discretion of the courts in dealing with neglected actions. The court stated, “We agree that the courts, in dealing with neglected actions, should not be unduly hampered.”

    The court acknowledged the concern that defendants might circumvent the 45-day demand requirement by always characterizing their motions as being for “general delay.” However, the court stated that it is not bound by the defendant’s characterization of the motion. A court can examine all the factors and determine whether there has been general delay or whether the only delay is a slight delay in filing the note of issue. The court emphasized the importance of diligent prosecution of actions, stating that “a rule which would permit plaintiffs’ attorneys to delay inordinately prior to the filing of a note of issue without risk of dismissal for failure to prosecute would hardly encourage their diligent prosecution of actions.”

    The court clarified its previous holdings in Salama v. Cohen and Tomich v. Cohen, stating that insofar as those cases implied that the 45-day demand requirement of 3216 applies to cases where there has been general delay prior to the filing of a note of issue, they should not be followed. The court concluded that CPLR 3216 leaves untouched the general power of the courts to dismiss actions in their discretion for general delay, but mandates the 45-day demand requirement where the only basis for the motion is a delay in the filing of a note of issue not amounting to general delay. The court observed that the facts of the case indicated a general delay on the part of the plaintiff.

  • Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969): Court’s Inherent Power to Dismiss for General Delay

    Cohn v. Borchard Affiliations, 25 N.Y.2d 237 (1969)

    A court retains the inherent power to dismiss a case for general delay in prosecution, even after the plaintiff files a note of issue, and is not limited by the specific procedures outlined in CPLR 3216 concerning motions based solely on the failure to file a note of issue.

    Summary

    This case addresses the scope of a court’s power to dismiss a case for delay in prosecution under New York law. The plaintiff commenced an action in 1958, but after an initial flurry of activity, the case lay dormant for four years. The defendant moved to dismiss for general delay after the plaintiff finally filed a note of issue. The New York Court of Appeals held that the 1964 amendment to CPLR 3216, which imposed specific requirements for dismissal motions based on failure to file a note of issue, did not eliminate the court’s inherent power to dismiss for general delay, regardless of the note of issue filing. The court reasoned that limiting dismissals solely to cases where the defendant serves a 45-day notice would unduly restrict the court’s ability to manage its calendar and address protracted delays.

    Facts

    The plaintiff initiated a lawsuit in November 1958 concerning alleged liability on guarantees in commercial transactions.
    The defendant filed an answer the following month.
    In April 1961, the plaintiff served a note of issue and statement of readiness but withdrew it to allow the defendant Mintz to complete pre-trial procedures.
    For four years, there was no activity in the case.
    In June 1965, the plaintiff served and filed another note of issue.
    Defendant Mintz then moved to dismiss the case based on general delay.

    Procedural History

    The Supreme Court, Special Term, granted the defendant Mintz’s motion and dismissed the complaint due to the plaintiff’s excessive delay and failure to offer a reasonable excuse.
    The Appellate Division unanimously affirmed the Special Term’s decision, citing precedent that the 1964 amendment to CPLR 3216 did not eliminate the court’s power to dismiss for general delay.
    The Court of Appeals granted leave to appeal to review the correctness of this ruling.

    Issue(s)

    Whether the 1964 amendment to CPLR 3216 eliminated a court’s inherent power to dismiss a case for general delay in prosecution, even when the motion to dismiss is made after the plaintiff has filed a note of issue.

    Holding

    No, because the 1964 amendment to CPLR 3216, which outlines a specific procedure for motions to dismiss based on the failure to file a note of issue, does not eliminate the court’s pre-existing and inherent power to dismiss actions for general delay in prosecution.

    Court’s Reasoning

    The court reasoned that the second paragraph of rule 3216 applies only to dismissal motions “based upon the failure of the plaintiff to serve and file a note of issue.” The court emphasized the legislative history, noting that a subsequent attempt to amend the law to broaden the scope of the 45-day notice requirement to “any failure of the plaintiff to diligently prosecute the action” was vetoed by the Governor due to concerns that it would unduly restrict the court’s discretion. The court also stated that eliminating the court’s inherent power to dismiss for general delay would be “inadvisable and contrary to all tradition.” The court acknowledged its prior decisions in Salama v. Cohen and Tomich v. Cohen, but distinguished the present case by noting that in those cases, the note of issue had not been filed, whereas it had been filed in this case. The court suggested that applying the 45-day notice requirement even after a note of issue is filed would create unnecessary delay and limit the court’s ability to manage its calendar effectively. The court also raised a constitutional concern, citing Riglander v. Star Co., that a statute depriving courts of discretionary power to dismiss for lack of prosecution could be unconstitutional. The court effectively held that CPLR 3216 provides a specific mechanism for dismissal based solely on failure to file a note of issue, but it does not preempt the court’s broader power to dismiss for overall lack of diligence. The court affirmed the lower court’s decision, reinforcing the principle that courts retain the authority to prevent protracted delays in litigation.